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The Seneca Nation a 
Domestic SoTereignty. 

The U. S. may not use 
the Judiciary as its instru- 
ment for siubjugation of 
other peoples. 



"We know that you are 
strong. We have heard 
that you are wise. We now 
await your answer that 
we may know if you aire 
just." (Corn.planter to 
Wiastoington in 179il asking 
restoration of Cattaraugus 
lands where many Senecas 
resided and covered by 
Fort ^tanwix cession. 'Re- 
stoired in 1794 by Treaty of 
Canandaigual. 



The Case of the Seneca 
Nation 

STATED BY COUNSEL AT BUFFALO, MARCH 
15TH 1921, ON SUGG-BSTTNG, BEFORE HON. 
JOHN R. HAZEL, JUDGE OF THE UNITED 
STATES DISTRICT COURT, DISMISSAL ON THE 
COURT'S OWN MOTION OF THE WRIT IN THE 
SUIT ENTITLED, UNITED STATES VS. SENECA 
NATION AND OTHERS. (NO. 322-B, IN EQUITY) 

GEORGE P.v'pECKER, 
Counsel for"the Senecas, 

Rochester. N. Y. 



The bill in the above suit charges that a certain parcel of 
the Cattaraugus lands of the Seneca Nation belongs, undivided 
and as a holding in severalty, to one Alexander John, his wife 
Lorinda and to the defendants Snow and Seneca as tenants in 
common, and comes to them as heirs of one Jessie Turkey, a de- 
ceased citizen of the Seneca Nation (but whether so descending 
under white man's or under the Seneca law of heirship is not 
stated) ; that the Surrogate of the Senecas has wrongfully re- 
fused probate of the will of the decedent and that the defendant 
Button, the present Surrogate, has wrongfully issued letters of 
administration in intestacy to the defendant Snow. The bill 
prays for a partition by this Court (presumably on the basis of 
the white man's State law of heirs'hip) of the land between those 
alleged owners and that the defendant Button and the Seneca 
Natton be enjoined from exercising jurisdiction over the estate 
.of that decedent. 

The individuals so named are tribal Senecas except Alexander 
John who, while residing among them, is by birth a Cayuga. 
There is no allegation that any private title to this parcel springs 
from any division in severalty of Seneca domain by act of the 
United States or by operation of federal treaty with the Senecas. 
The United States' has never assumed to divide such domain in 



.9323 



severalty among the Senecas. Any allotment which has occurred 
has been under the law and by action of the Seneca Nation. As 
bearing on the injustice of the instigation of this suit by the 
Johns, it is to be observed that the bill fails to allege that they 
have exhausted any judicial remedy which they may have under 
tribal laws for the protection of any private rights which they 
claim. The bill charges by way of avoidance that those remedies 
(in the opinion of the United States) are inadequate. It appears 
from the allegations and is true, that a right of appeal lies from 
the tribal Surrogate to the Council of the tribe. No such appeal 
was taken. 

The writ of subpoena here was served on the parties named 
defendant by the marshal of this Court who, the return shows 
or should show in order to serve it, invaded this Cattaraugus 
domain of the Senecas where he found those persons. The per- 
sons so served, as well as the Nation, are here to suggest to this 
Court, speaking through their counsel, its want of jurisdiction 
over them personally and over their domain and that the writ 
so served ought to be dismissed on the Court's own motion as 
being an extravagant exercise of judicial authority because its 
issuance was an improper act, unfriendly to the Seneca Nation 
and, as the Senecas are advised, no federal official was authorized 
by the Congress of the United States to commit it. 

The Senecas for that purpose come here because they as- 
sume that other departments of the government of the United 
States would be closed against them in complaining against a 
writ issued under color of judicial authority. The several 
grounds for their suggestion are respectfully laid before this 
honorable court as follows: 

The Seneca Nation, as this Court should take judicial notice, 
is composed of some two thousand souls residing on the Allegany- 
Cattaraugus lands of the Seneca people where they find their 
living on improved lands which they till ; that these lands are 
remnants of the ancient domain of the Senecas; that the relation 
of these people to the United States is that of friendly but politi- 
cally separate neighbors ; that that relationship in certain par- 
ticulars is carefully defined by express treaties negotiated be- 
tween the Senecas and the United States ; that the last treaty 
in that series took place at Bufifalo Creek on May 20, 184:2, where- 
by a cession of all but their present domain was made and 
whereby the portion so ceded then passed, as the Senecas sup- 
pose, under the sovereignty of the United States. 

Soon after 1842 and on Decemjjer 4th, 1848, at Cattaraugus, 
these people of Allegany and Cattaraugus met and duly al)ol 



JUL i3 



3 

ished their ancient system of government Ijy sachems and chiefs 
which had become inadequate, and created instead an elective 
system of representative officials under a written constitution 
which provided for a legislative, a judicial and an executive de- 
partment. That new goVernment was thereupon duly recognized 
by the government of the United States by communication to its 
local agent, which we read to the Court on the argument. It was 
also recognized by the State government of the nearest neighbors 
of the Senecas— (See Laws of New York 1849. Chap. 3r8 and 
Resolution of May 37th. p. 731, same volume). Under that gov- 
ernment the Seneca Nation continued and has" ever since main- 
tained de jure and de facto domestic self-government on their 
domain which includes these Cattaraugus lands. That govern- 
ment is no more amenable to judicial process, except as it con- 
sents, than is the government of any other people. (Beers vj 
Arkansas, 20 How. 527; Cunningham v. Railway Co., 109 U. S. 
446). In' the Beers case Justice Taney said that a State (the 
political government of any people) is neither amenable to suit 
in its own courts or any others. 

The Seneca Nation is under restrictions as to political rela- 
tions with other nations founded on these shores by Europeans 
because but only because it is bound by voluntary treaty engage- 
ment of the Six Nation confederacy made with the confederacy 
of the revolting colonies at the treaty of Fort Stanwix in 1784 
(Kappler's Indian Treaties, p. 5) to restrict its international 
political relationships to those only which should be established 
with the confederation of those new states. Such restriction in 
foreign relations in no wise impaired the independence of the 
Senecas or their sovereignty in domestic affairs, either of public 
character or of private affair of the people of the Nation. The 
Nation on such domain is, in respect to home affairs, under the 
law of nations, of right independent of the United States and of 
the constituent states thereof as it is of all other states or govern- 
ments established on these shores under European flags. The 
Senecas consider the same to be true of the other members of 
the Six Nation confederacy living on the remnants of their an- 
cient homelands. Chancellor Kent of New York said in 1823 
(Goodell V. Jackson. 20 John. G93) that the Oneidas (of the Six 
Nations) were a Nation whose sovereignty was entitled to re- 
spect and that the property rights of their members in their lands 
was not held subject to any State or federal power. This right 
of internal self-government has never been taken from the Six 
Nation peoples. (United States v. Boylan. 205 Fed. 1(55-173). 

The Seneca Nation, therefore, must and does decline here to 
sul)mit itself along with its members named in the writ, to this 
tribunal foreign to their allegiance (United States vs. Boylan, 



supra, p. 1T3) ; and holding to its own right of jtidgment, the 
Seneca Nation considers that no mandate from this Court woiild 
be constraining upon it or its members at home within such 
Seneca domain. Chancellor Kent of New York declared in 1803, 
in Jackson vs. Hudson (2 Johns. 375), that " the Mohawks never 
were amendable to our (white man's) courts of justice." 

In vesting federal courts with power to construe treaties of 
the United States, it was no more contemplated by the United 
States Constitution that Indian tribes should be concluded by 
such determinations, if in disparagement of tribal rights, than 
that the British Crown should be concluded where it had not 
submitted itse'lf voluntarily to those tribunals. 

The Seneca Nation is sheltered by those principles of inter- 
national relationships and of natural rights to which the United 
States in common with civilized peoples has given adhesion. 
The Senecas are entitled here to the benefit of those rules under- 
lying the administration of justice which are fundamental. 
Among the latter is the rule that judicial officers should enquire 
at the threshold of every cause whether they have lawful right 
to hear and adjudge upon the subject-matter or over parties sum- 
moned who have not submitted themselves and whether that 
question be or be not raised at the bar (Minnesota v. Hitchcock, 
185 U. S. 382). 

This court does not possess the jurisdiction assumed under 
color of this suit. The property dispute out of which the com- 
plaint arises did not occur within the territorial jurisdiction of the 
United States but on foreign domain. 

The special governmental duty of protecting the Seneca Na- 
tion owing 'by the United States, does not arise out of any right 
inherent in any government founded by Europeans or the des- 
cendants of them, over aboriginal x^mericans, however power- 
ful the former may have been yesterday or more powerful to- 
day. That duty of protecting the Seneca springs wholly from 
contract obligation undertaken by the United States through 
treaty between it on the one side, and the Senecas with their own 
confederated bretheren on the other. Those treaties should be 
construed by both parties in the light of their surrounding cir- 
cumstances as an international tribunal would do. They were 
made when the Senecas, possessed of a wide domain and of un- 
disputed sovereignty thereover, were in need of protective aid 
against the growing power of aggressive men in America living 
under various flags, — making no exception of white men under 
the flag of the thirteen confederated states. Those treaties were 



made at a time, too, when that prctection was called for and in- 
tended not only to safeguard the mere proprietary rights of the 
Senecas in their domain, but to safeguard their political rights 
of self-government therein as against all outside encroachment. 

For the purpose of alienating the Six Nations from the friend- 
ly relations then existing with the British Crown, those new states 
were very willing to promise such protective aid for which the 
passing years would necessarily increase the need. Since that 
compact expressed no limitations in respect to range of that pro- 
tection, no Hmitations can now Ije mtroduced by the United States 
as an excuse for restricting it to the subject of mere property 
rights thus removing that barrier against destruction, at the hands 
of the United States, of the political rights of the Seneca Na- 
tion. This bill aspires to work sucli destruction. The promise 
of the United States so intended and understood, was given at 
Fort Stanwix in 1T8-1 and it was reaffirmed at Fort Flarmar in 
178!) (Kappler, supra, p. 23) and is obligator}^ upon the United 
States to-day. The Treaty of Fort Stanwix antedated the 
United States constitution which by the force of Article 6, con- 
firmed that obligation of the Fort Stanwix Treaty and made it 
a fundamental limitation on all departments of the government 
of the United States. Similar protective obligations have been 
ignored by inconsistent acts of Congress to punish Indians for 
acts done at home and for invading their lands with railroads 
enacted since and in times of peace with the Indians. The up- 
holding of those acts by the Supreme Court (United States vs. 
Kagama, US U. S. 384; Cherokee Na. vs. Kansas Ry. Co., 135 U. 
S. G41), must be justified in principle of law by those who think 
they know how. The Senecas would explain those enactments by 
pointing to the existence of a self-interest in the United States op- 
posed to interests of Indian tribes which it had become safe for 
Congress to dare to act upon. Congress has not 3-et however nor 
the Supreme Court in a Six Nation case, repudiated by overt act 
the obligations of those early Six Nation treaties. The Senecas 
stand on those particular treaties which, in their terms and circum- 
stances, are very unlike treaties with certain Southern and West- 
ern tribes. The Wallawallas, for example, in ^S^)5 agreed to sub- 
mit to laws to be made by the United States for government of 
them (Kappler, p. (Si)!), 7U). In the absence of any international 
judicial tribunal, common to the Senecas and the United States, 
the Senecas are obliged and entitled to interpret their treaties for 
themselves as sovereign parties alwavs do. 

Tlie limitation, springing also from Seneca consent by 
treaty, restricting future cessions of Seneca domain to cases 
where the United States was to take title or private individuals 
were to i)urchasc mere ])ro])crt\- right in the land with its C(Tnscnt 



intending the land to fall under its sovereignty, implied the exist- 
ence of an unlimited sovereignty and capacity in the Senecas to 
maintain foreign relationships to be cut down by that limitation 
but to that extent only. The haughty assertions, so common in 
the writings of white man's authorship, that his government, 
state or federal .and under either a crown or a democracy, had the 
right to impose such limitations of its mere will, stand, in the 
face of these treaties, in the full lig'ht of their falsity. It was 
never pretended that the Mohawks were not free to cross Niagara 
and settle in 1784 on the Grand River in absence of any consent 
on the part of the United States and no such consent was asked. 

The doctrine that any pre-emption right of European crowns 
as between themselves endowed one of them with present pro- 
prietorship in the soil occupied and unceded by an Indian tribe, 
was absurd. That, if such property right existed in a crown 
or a state, it could lawfully be commercialized by sale of it to 
their private subjects for profit of the vendor was a wicked thing 
to say. In saying, for the majority of his divided court (Fletcher 
vs. Peck, 6 Cranch 87-1810) that the interest of Georgia in Cher- 
okee domain " was not repugnant to a seizin in fee " Justice 
Marshall devoted but four lines of his opinion and offered no 
reasons to sustain it, although that was the fundamental question 
in the case. The question of the right of a state to revoke its 
grant, one of great interest to the white man, had a'bsorbed his 
attention. But the four lines satisfied the land speculators and 
the damage was done but Marshall, we believe, little dreamed 
of the wickedness and corruption to follow in the conversion 
of that " fee " into profits, for nothing of that sort was broached 
at the bar. The next absurd step, a corrollary of the first, was 
to say that the tribal right was a mere possessory privilege of 
Indians to roam the surface of the earth for game. Under the 
combined doctrines the exercise of that privilege by Indians was 
but to keep speculators to whom states had sold that fee and 
their progeny out of their own. The private speculator was 
bound to resort to bribing of chiefs to sign cessions, so that the 
speculators could get their money back in case of a tribe unwil- 
ling to sell and the State in such case was bound to stand by, 
whatever its pious pretenses of Indian guardianship, and witness 
the perpetration of the swindle or else play false to its own citi- 
zens whose moneys it had taken. Where these doctrines con- 
cerning the pre-emption right were uttered by judicial tribunals 
of the white man here in early days, it was when the tribes of 
course were out of Court and where no representative of the De- 
partment of Justice of the Government under pledge by treaty to 
protect them, was before such tribunals. The first and most not- 
able example of that was the case of Fletcher vs. Peck, between 
private speculators in such pre-emption rights, called the Geor- 



gia Company, being one and all anxious to establish that doc- 
trine in the federal court of the District of Massachusetts where 
tnany of the company lived. The suit presented the case of a 
sale by the State of Georgia of its pre-emption right as to Cher- 
okee domain, stirroundcd by the presumptuous lines of the crt)wn 
grant to that colony. That sale by Georgia was insi)ired by the 
Massachusetts sale of its pre-emption right as to these Seneca 
lands of seven years before to Phelps and Gorham. The Georgia 
land itself lay lOOU miles or more trom Massachusetts, and when 
the case came up in Massachusetts the Cherokees were so far 
away that they could not know what was being done in the cuns 
of that State. The white man's issue between the parties as to 
the right of a State to revoke its own grant, was used by the spec- 
ulators as a cover to bring before the Court the feigned issue 
that the pre-emption right gave rise lo a present fee in the soil. 
As to the latter question the parties had no quarrel between them- 
selves as Justice Johnson was keen to discover. When Johnst:iu 
vs. Mcintosh (8 \\'heaton 543) arose thirteen years later (IS-^J;!) 
with no Indian tribe or protector of one by treaty engagement 
represented before the Court to challenge its bias in dealing in 
a domestic case with international law. Justice Marshall could 
easily follow his own earlier dictum of IS 10 and carry the whole 
bench with him in holding that the fee possible to come ulti- 
mately to an imperialistic State in lands of occupant Ohio tribes 
of 30 years before, was a then-present fee in such a State (Vir- 
ginia) whose charter bounds surrotnided the land. The foun- 
dation of his argument, however, was the fact that Indian domain 
was but a hunter's wilderness held by the Ohio tribes everywhere 
in that day by community tenure in which no mem'ber had a pri- 
vate right susceptible of alienation. That not being true now. 
as to the remaining tribal domain anywhere between the two 
oceans where nearly all Indians are tarming on parcels privately 
owned, the argument for whiteman's sovereignty must fall with 
that foundation. No word of Justice Marshall's 33-page opinion 
ventured to confirnfhis other dictum of ^S'O that it was compe- 
tent for such a State to bestow on individuals its own right as a 
sovereign to purchase such lands from the tribes and to bestow 
the right by grants to individuals so that they might buy Indian 
domain as an exclusive privilege for their own private profit. 
Nor did Justice ATarshall int'mate that the Indian right of occu- 
pancy, even in his htintsman era, was less than a complete sover- 
eign right in the ordering of his domestic concerns while in pos- 
session and maintaining tribal government over himself therein. 

With Indians usually out vi Court and as far away, was the 
doctrine devcloiied that the white man's government possessed a 
guardianslii]) l)y natural right and of'unlimitcd scope, over tribal 



Indians, a doctrine most convenient in coercion of tribes numer- 
ically weak. Indeed, the doors of those courts were closed 
against the tribe which in its own name appealed for protection 
(Cherokee Nation vs. Georgia, -5 Peters, 1). 

If, as there held, a tribe has no standing under the constitu- 
tion to sue in federal courts, how come those courts with power 
from that constitution to entertain suits against tribes as in case 
of the Senecas here? The o'bjection arising under Article 3, (Sec. 
2, Subd. 1), that a tribe is not a " foreign " nation as there held, 
applies no more to "a controversy" where the tribe would be 
plaintiff, than it would where any plaintiff would make the tribe 
a defendant. Whether the United States itself or an individual 
would sue a tri'be is immaterial. That tribes may on occasions 
have submitted themselves voluntarily when sued and submitted 
themselves many times as plaintififs under enabling acts of con- 
gress (lending them the services of federal courts) is no answer 
to this position. 

If federal courts would have no jurisdiction over the British 
Crown in a suit by the United States (conceiving service to be 
made on the King in his palace) which we assume will 'be con- 
ceded, there can be no jurisdiction intended by the United States 
constitution where the United States would be plaintiff and the 
Seneca Nation is to 'be sued. While this point does not apply to 
the individuals sued here, it must result, nevertheless, in their 
favor, for at home they are under shelter of a tribe over which 
this court 'has no lawful power in this suit. Any jurisdiction, 
therefore, asserted here against them as individuals would be 
ineffective and for that reason should not be asserted by a judi- 
cial tribunal. If we are wrong in this construction of the judi- 
ciary article then great minds, including Justice Hughes and Jus- 
tice Taft, have wasted time of late to devise an international 
court, since the domestic courts of the United States would on 
that theory have the right to adjudicate all world troubles. The 
United States itself could act as plaintiff where necessary and 
in the role of next friend, as it does here to the disputant whose 
side it favored, and all international disputes ho thus brought to 
this forum. 

Such imperial pretences under color of judicial action would 
not of course be attempted against peoples having armies and 
navies ready to greet marshals armed with writs. 

If certain judges of federal or state courts have seen fit to 
use the term "guardian" to describe inaccurately a government 
which l)y treaty has covenanted to protect an Indian tribe from 



outside agression, the Indians concerned may have no right to 
complain. But when those judges have interpreted the extent of 
their own judicial power to include control over tribal Indians 
in respect to domestic affairs and have deduced that power from 
the assumed existence of an unlimited natural right of guardian- 
ship in the United States, then these tribes dispute the conclu- 
sion. The acceptance by the Indians ot the educational benetits 
of the white man's government. — so often cited in discussion of 
the status of the Indian. — is irrelevant evidence on the issue of 
whether wardship exists as to the sphere of the Indians' domestic 
concerns or as to whether the Seneca Nation in those respects 
is under subjugation to the white man. In many case>the United 
States is using trust funds belonging to the tribes, for Indian 
education. Washington, who promised the benefits of education 
(See speech cited infra) never suggested that political subjuga- 
tion was to follow acceptance of instruction in the use of the 
plow, the anvil or the spelling book. That as against an aggres- 
sive frontiersman or other private citizen of the United States 
or as against aggression if offered by European governments, the 
Senecas might properly be called the wards of the United States 
government (if protection was occasionally afforded), it does not 
follow and is not true that the Senecas at home on their own do- 
main are wards or subjects of that government as to the order- 
ing of their tribal or private life. The treaty agreement of the 
Senecas to limit tribal sovereignty in respect to foreign relations. 
in no way operated to impair their sovereignty in domestic affairs 
throughout the extent of their unceded domains. 

President \\'a5hington. at Philadelphia on December '^Oth. 
ITOO. explaining the meaning of his treaties with the Senecas, 
said in writing to the Six Nation Chiefs (American State Papers. 
Indian Affairs, \"ol. 1, p. 14"^) : 

"To the Six Nations: 

In future the United States and the Six Nations shall 
be brothers * * *. The general government considers 
itself bound to protect you in all your lands secured to you 
by the Treaty of Fort Stanwix * * * and will be faith- 
ful to its engagements." 

The Senecas do not believe that President Washington b\- 
those words meant the mere property rights of the Senecas in 
their domain and intended to withhold spoken promise to respect 
the sovereignty of the Senecas over it and did so to the end that, 
should the people of the United States become some day strong 
enough to succeed in wrongdoing and be minded to do wrong, 
they might deem themselves unhampered by treaty obstacles to 
the robbing of the Senecas of the political right of "^elf-o-overn- 
ment in their own homes. 



10 

These Cattaraugus lands at the close of the colonial revolu- 
tion were still in the possession of the Senecas. Those lands were 
at no time occupied by colonial troops nor were the Senecas con- 
quered by them in that war. There is no record that these people 
were ever conquered by any other people at any time. The 
Treaty of Paris left the United States to deal with the Six Na- 
tions as late enemies in war, as it might be able or inclined. The 
United States did recognize them as belligerents, sovereign in 
their status, by making peace with them on terms mutually 
agreed upon at Fort Stanwix through representatives acting for 
the United States who were commissioned and received as pleni- 
potentiaries of the Continental Congress. 

The doctrine that the aboriginal Americans have no rig'ht of 
domestic sovereignty within their domains was not voiced in the 
legislature or courts of the United States, or of the separate states 
thereof, until the authors of it might feel full security in the man- 
power that surrounded them. No declaration of benevolent mo- 
tive or of pretended necessity, as the white man may see it, can 
serve to conceal the fact that it is a sense of power that leads 
such authors to substitute that doctrine, in the case of tribal 
Indians, for the established rules of justice governing the rela- 
tions of separate peoples. 

To justify usurpation of tribal rights on the pretense of in- 
competency of the Indian, — also a favorite argument in these 
courts and in Congress, will not fit the case of the Six Nations. 
The competency of these people for home-rule was never c[ues- 
tioned down to the time when the white man could overwhelm 
in numbers, and then it was when he first adopted the policy of 
force disguised under legislation for removing Indians to the 
West under treaties to which signatures of tribal chiefs were to 
be secured by hook or by crook. That occurred under the leader- 
ship of Andrew Jackson who carried that imperial policy with 
him into the White House. That brutal policy worked its own 
limitations in developing a revolt of white man himself against 
white man in face of the national crimes being perpetrated by 
them under it against tribal Indians. 

In 1885, Justice Miller, in United States vs. Kagama (IIS 
U. S. 375), in upholding indictment of a Hoopa Indian for crimi- 
nal conduct on his own reservation, said: 

" The power of the general government over these rem- 
nants of a once powerful race now weak and diminished in 
numbers, is necessary for their protection * * * j^^ 
must exist in that government because it never existed any- 
where else * * * because it never has been denied." 



11 

That statement has been quoted with satisfactie)n in certain 
later opinions. What the words of tlie learned jurist mean is, 
of course, that the white man had that power lawfully (however 
he got it), but that it was to be exercised, under the white man's 
federal constitution, only through his federal government. But 
in the light of history the statement as to lawful power is devoid 
of truth. Justice Johnson in Fletcher vs. Peck, said in 1810 that 
under white man's sovereignty thev could govern white men on 
Indian domain but not the Indians. The United States Congress 
did not think it necessary to claim the right to punish tribal 
Indians for criminal conduct until the year 1884. Since that time 
criminal conduct has been, per capita, much more prevalent 
among the people of the United States than it has among tribal 
Indians. The Indians ha.\e always denied the existence of that 
right in the white man's government, state or federal. 

In J 823 Tommy Jenny, a Seneca, was captured by an Erie 
County Sheriff, at Cattaraugus, and carried to Buffalo, and there 
indicted, tried and convicted of murder on these Cattaraugus 
lands, and sentenced by a white men's court to hang. The pro- 
tective arm of the federal government, not having been raised 
against that usurped authority, as it should have been, the Sene- 
cas were left to assert their tribal independence for themselves. 
Red Jacket with a company of other Senecas, journeyed to 
Albany and warned the Governor of New York that Jenny must 
not hang. Jenny was not hung, but was released. The right 
claimed by the white man has been denied by these Indians in 
criminal cases. It was denied in this very court in this district, 
when the Seneca Chew was sentenced to prison for life about 
1915. It was denied in the Cusick assault case in 1914, and the 
denial was justified in the opinion of the Court of Appeals of New 
York (212 N. Y. 183). It was denied in United States vs. Hamil- 
ton, a game law case (283 Fed. GS5) in 1915, and this court upheld 
the denial. It is true that in the two latter cases the prosecutions 
were initiated under New York State laws. If the courts said 
then, as has been common habit in such cases, that the federal 
government could have lawfully done what the state government 
had sought to do, then such remarks were obiter. The logic of 
those decisions was, that the white man through his government 
had no right to punish tribal Indians for their acts done at home. 
In Jackson vs. Hudson (supra) Chancellor Kent did not vitiate 
his statement by suggesting that the federal courts would have 
jurisdiction over trrbal Mohawks if the state courts of New York 
would not. Probably no tribal Indian has been prosecuted under 
the Federal Crimes Act of 1884, where the question of the white 
man's jurisdiction was not raised by the captive. No number of 
such cases overruling the Indian right concludes these Indians as 
to anv case to arise in future. 



12 

By the Treat}' of Canandaigua (Kappler, p. 34) in 1794. the 
United States agreed to a specific delimitation of and acknowl- 
edged the separate Seneca domain and of that the Allegany and 
Cattaraugus lands are unceded remnants. The United States 
there promised in terms : 

" Never to claim the same or to disturb the Senecas, or 
their Indian friends residing thereon and united with them 
in the free use and enjoyment thereof." 

That was more specific in terms but no broader in spirit than 
the simple term " protect " of the Fort Stanwix Treaty. In con- 
sideration of that agreement a reciprocal disclaimer was made 
by the Senecas as to domain outside those bounds which had been 
ceded by the Senecas to the United States or to its appointees. 
The Senecas deem themselves still bound by that engagement 
and they hold the United States to it. The Senecas have never 
been notified by the United States that it had abrogated those 
treaties on its part, (the only proper evidence of abrogation under 
a reign of law), and the Senecas have ever since been at peace 
with the United States. That Canandaigua Treaty was the latest 
and superceded the Fort Stanwix and Fort Harmar treaties so 
far as inconsistent in any respect therewith. It restored title to 
these Cattaraugus lands (the home of many Senecas) after ces- 
sion of them at Fort Stanwix. By what vagary of reasoning can 
it be said that the United States has the right to-day to invade 
those lands to serve the writ in this cause and summon the Sen- 
eca Nation or its members to the "bar of this tribunal, foreign to 
them, there to submit themselves to injunction against the func- 
tioning of their tribal government in their home afifairs within 
their domains, when the United States has thus engaged never to 
disturb them in the free use and enjoyment thereof? By what 
warrant are the terms "free use and enjoyment" to be limited at 
this late day by the ex parte will of the United States exercised 
through its courts or other official institutions, to a use and en- 
joyment by the Senecas only in the status of su'bjects of the 
United States, in place of the sovereign tribe which the Senecas 
constituted in respect to home afifairs on the day they signed the 
Pickering Treaty at Canandaigua? These questions answer 
themselves. A subject of the United States who is not and can- 
not be a citizen thereof under its laws. — and the Senecas cannot 
be. is not a " free " man. A Seneca in that situation could not 
have, as against the United States, that " free use and enjoyment 
of the Cattaraugus lands and be "undisturbed" therein, as all 
parties to the Treaty of Canandaigua had the right to understand 
and did then understand was to l)c the case. 



13 

At Fort Stanwix in KSI, the United States accepted from 
the Six Nations a " yielding " of their extensive domains to the 
west of the boundary therein fixed. And at Fort Harmar in KS!), 
the United States took from the Six Nations a confirmation of 
that ' cession." Strange provision, that, if the distinguished 
■' plenipotentiaries " of the United States to the Six Nations, and 
who of course phrased those documents, did not there recognize 
that the Six Nations had somethmg more than mere " right of 
occupancy " in the soil to part with in that wide domain along 
Lake Erie and the Ohio. At Canandaigua in iT!>4, the United 
States accepted from the Six Nations a cession of the right to 
make a military road over the Seneca domain along Niagara, as 
well as a right of free passage through Seneca rivers and across 
all Six Nation lands retained and therein defined. Strange pro- 
vision, that, if the Six Nations would have had no sovereignty to 
ui)hohl exclusion of the United States from such use of that do- 
main in the absence of treaty cession of such privilege. By the 
latter treaty, misconduct of the citizens of either party likely to 
endanger the peace and friendship between them, was to be made 
a subject of diplomatic complaint between the respective govern- 
ments. How idle to say that the Six Nations within their own 
domain were, nevertheless, then in subjection to the United 
States, and to be so in future. Colonel Pickering was too honest 
and frank to have entertained such view while concealing it 
from the Six Nations. The failure of the United States Commis- 
sioner who used the pen at many later treaties, where private 
indixitluals were to negotiate as pre-emption holders for tribal 
lands, to recite appropriate and concurrent cessions of sovereign- 
ty to the white man's government over the lands so "deeded" 
to private purchasers (of which the treaty at Big Tree in 1797 
is a good example, Kappler, p. 1027) is not for the Senecas to ex- 
plain. Possibly the United States' negotiators thought it impol- 
itic to emphasize tribal sovereignty by suggestion of express 
transfer of it. Probably it was 'because of the dispute (not yet 
buried) as to whether the sovereignty should pass in such case 
to the United States or to the State whose charter lines sur- 
rounded the territory. But the Six Nations were never concerned 
in that dispute. The private purcha=;ers no doubt felt quite sure 
that the tri'bes would never seek to exercise sovereignty over the 
lands so "deeded" and events justified that confidence. 

'i"he federal congress in 1H30. enacted the "removal" law 
in response to the popular desire of which President Jackson was 
exponent, that eastern tribes be induced by the federal govern- 
ment to move to locations west of the Mississip])i. Removal oi 
the Six Nations was the special aim of that enactment. To win 
consent of the tribes, it was necessary to assure them that they 
would enjoy at such new homes all the rights they had enioyed 



14 

in their old homes. The Act of 1830 (Chap. 148, approved .May 
'28th. U. S. Stat. L. 84, p. 411) therefore provided (Sec. 3) : 

" The President shall assure the tribes or nations that 
the United States will forever secure and guarantee to 
them, their heirs or successors, the country so exchanged." 

It was there provided (Sec. (5) : 

" That the President shall cause such tribe or nation 
to be protected at their new residence against all interrup- 
tion or disturbance from any other tribe or nation, or from 
any other person or persons whatever." 

Is not the trespassing marshal of this court a person? 

In the unsuccessful eflfort to prevail on the Six Nations to 
move, the treaty of 1838 (Kappler's p. 504) ; the treaty that 
reeked with fraud (See Van Buren's message of Jan. 13, 1840). 
recited the following promise by the United States to these Six 
Nation tribes as to their rights in such new home. 

" To establish their own form of government, appoint 
their own officers and administer their own laws." 



impelled by fear or lured by hope about 550 deluded Cayugas 
removed between 1831 and 184G to Jackson's Indian graveyard 
in the treeless prairies of Kansas. In 184? only 50 of these were 
found alive. (N. Y. Senate Doc. No. G4, Vol. II, 1849.) 

The Senecas and other Six Nation tribes more wisely re- 
fused to move west and have held their ground and these home- 
lands to this day. The language last cited is a formula quite sat- 
isfactory to the Senecas to-day as descriptive of the domestic 
right of self-government to which they are entitled. 



As late as 18G(), the Sui)reme Court, in a case involving the 
independence of the Senecas in their own domain, when the State 
of New York had attempted to tax it and referring to the pledges 
of the Pickering Treaty in respect to the Senecas, said (New 
York Indians, 5 Wall. Tfil. p. TG8) : 

" These are guaranties given by the United States to 
which her faith is pledged to uphold." 



15 



At the same time, dealmsij with the attempt of Kansas to 
tax Indian domain, the same eourt said (Do. p. T-")^) : 

"The rig-hts and privileges of these Inchans eaii only 
be changed bv treaty stipulation or by voluntary abandon- 
ment of their tribal organization." 

The Treaty of Canandaigua still stands. The Senecas have 
not vet voluntarilv dissolved their tribal government and have 
neveV acquiesced in the opinions of white men's courts deroga- 
tory of their tribal sovereignty in home aiiairs. The obligation 
of these treaties with the Senecas to protect them, implied no 
consent of the Senecas to the exercise of a restraining power over 
them at home. The duty of the United States begins and ends 
with protection against aggression from the outside ; protection 
ao-ainst third parties and, of course, protection against aggression 
by its subjects private or ofiicial high or low as a self-denying 
implication of the covenant. But the duty of self-restraint by the 
United States, existed prior to and outside of any treaty and 
sprang from the natural right of every separate people to be left 
alone by all others, in respect to aggressive contact. 

Protection of tribal Indians by the United States m fulhll- 
ment of treaty o'bligations exercised through judicial channels in 
court:, of the United States and as complamant, is a quite recent 
activity of the federal government. It is probably the most laud- 
able form in which the United States has made good its promised 
protection. For decades the Indian OHice and the Department 
of lustice had left the Senecas to their own devices or to sutter 
aggressions. The United States during the same period seemed 
to think that its duty was discharged m seeing that the yearly 
dole of treaty calico reached these people in safety, hor many 
years tribes with just grievances against the government itself 
or against its citizens, on complaining ol wrongs suttered were 
offered by congress the cheap privilege (under enabling Acts) 
to sue the government itself when charging it with wrong, or 
to use federal courts to pursue trespassing United States citizens 
—but at the expense of the tribe. That policy imitated an old 
one of New York State permitting Six Nation tribes to sue New 
Yorkers in New York courts for wronging Indians but the In- 
dians had to pay their own costs. The Six Nations were thus 
recognized bv congress as quite competent to conduct their cases 
and to select their own counsel. But in 1871, Congress (R. S. 
Sec 2i()3) required the tribes, in proceeding, to arrange with law- 
vers (of the United States) on a speculative basis, for the statute 
forbade any other form of compensation. The proceedings under 
that statute have, with notal)ie exceptions, i)roven a disgrace 
lo the o-ovcrnmcnt which enacted it. and little honor to the bar 



16 

which practiced under it. Dissatisfaction with the- results en- 
countered led these tribes to awake to the fact that it had been 
the duty of the g-overnment all along to move itself and by its 
own departments, and at its own expense, if it would make good 
the protection which it had promised in cases where judicial ac- 
tion was a proper means. 

The Heckman case (224 U. S. 413) in 1912 made clear that 
duty of the government and the implied authority of government 
departments to act in proper cases without special command of 
Congress or authority of express enabling acts. But that case 
and those upon which it rested its warrant and all which have 
followed it were actions against outsiders of the tribes, who had 
committed some aggression or wrong on the tribe or on mem- 
bers thereof. In a word, those cases were against outside whites, 
citizens or suibjects of the United States. It is believed that not 
a reported case can be found where the United States government 
has moved against part of a tribe in favor of another part, or has 
presumed to enjoin through its judiciary the functioning of tri'bal 
authority within tribal domain. But such offenses by courts have 
jeen a favorite practice of State judges of New York. (See 80 
Misc. N. Y. 418; also 155 A. D. N. Y. 7G5). 

We are advised that the Department of Justice relies here 
on the case of United States vs. Boylan (2G5 Fed. 171) as warrant 
for this suit which it brings as a pioneer case. The Boylan case 
was brought at the instance of Oneidas and not against that na- 
tion or any member of it. On the contrary, all defendants there 
were United States citizens and subjects; whites; whose acts had 
contravened the federal Indian Intercourse Act in the attempt to 
get title to Oneida Indian lands without consent of the United 
States. That action was brought by the United States as plain- 
tiff, in protection of Oneidas, and no one else, against outsiders 
and no one else. No opinion is expressed by the federal courts 
in that action to the effect that the United States should or may 
bring action protective of one Indian or part of a tribal member- 
ship against another member or mennbers thereof nor do they 
intimate that an Indian Nation may be sued. 



Tiie Circuit Court of Appeals expressly rests its jurisdiction 
there on the authority of the Heckman case (224 U. S.). But that 
also was a suit to protect tri'bal Indians not as against the tribe, 
or a member of it. but as against subjects of the United States 
who had defied both the Indian Intercourse Act and the Act of 
Congress which restricted alienation of tribal lands allotted in 
severalty under treaty by the United States. Neither of the re- 
ports of the Boylan case recite in express terms that the defend- 
ants there were all New York sul)jects. probably l)ecause that fact 



17 

was so well known that it uas taken for gTanted by the parties 
and the courts. (See Printed Record of Case on Appeal in Boy- 
Ian vs. George, in Appellate Division). The writer speaks with 
authority on this point for it was he who, representing the Attor- 
ney General of New York and on direction of Governor Hughes, 
prevailed on Judge Lyon, sitting in the State Supreme Court in 
the partition action (Boylan vs. George, 133 A. D. 51-1) referred 
to in the Boylan case to refuse confirmation of the partition sale 
on the ground of a want of jurisdiction over tribal Indians. After 
the Oneidas were evicted and after effort extending over some 
years, he prevailed on the Department of Justice to institute 
action by the United States and he supplied the data for com- / 
mencing it. Judge Ray. who decided that case in the district 
court, refers to the defendants who claimed title, as being " out- 
siders " (356 Fed. 492). 

The suit at bar against the Seneca Nation and members of 
it, is in direct disrespect of the protective duty of the United 
States as declared both in the lleckman and Boylan cases. This 
suit is, moreover, an overt act, committed under color of the au- 
thority of the United States through its trespassing marshal, 
directly violative of its covenant given to the Senecas at Canan- 
daigua, never to claim this domain or to disturb them therein. 
Is an overt claim of dominion less of a disturbance than a seizure 
of acres or houses? The people of the United States have re- 
cently put their own sovereignty above everything else precious 
to them. Had the Senecas not been during recent generations 
so non-resisting, and were they not the mere handful that they 
are, a prompt apology, at the least, would quickly be offered by 
the United States for the act of its marshal. When the United 
States takes up the grievance of private members of the Seneca 
Nation against their own tribe, it plays the part of a marplot. 
To do so under the pretense that it is performing a duty, adds 
insult to the injury. The Johns, for whose protection the com- 
plainant alleges it is acting, were, if they really sought such aid 
in disrespect of the tribal government, traitors to the tribe which 
had sheltered them as the United States was bound to know. 

The Heckman case holds soundly that the Department of 
Justice needs no express act of Congress as its warrant to brinji' 
action in the name of the United States as plaintiff' against its 
own citizens who have committed aggressions upon Indians. If, 
as Justice Hughes writes in that case, Indians are under no bur- 
den to defend themselves ag'ainst outside aggressors, by what 
warrant does the Department of Justice summon a tribe to defend 
itself here and to defend against the United States itself and 
before the domestic courts thereof? It was there where Justice 



IS 

Hughes warns his country against goading Indians into bellig- 
erancy through denial of the protection due them from federal 
courts. Protection by the courts may be extended as well by 
refusal to act where the court should refuse as by action where 
action is a duty. 

It was the theory of the Major Crimes Act of Congress and 
of the Kagama case brought under it, that to prosecute tribal 
Indians for criminal acts committed on their own domain an ex- 
press act of Congress was necessary for the warrant of the Depart- 
ment of Justice and as the foundation for any seeming duty of 
federal judges to try and punish tribal Indians. But where, we 
ask, is the act of Congress, which should be equally indispensable 
to the exercise of civil jurisdiction as against a tribe or its mem- 
bers, to warrant invasion by a marshal and the destruction of 
tribal governments by injunction? W'e know of none. Prior 
to this argument we had never heard of a case where federal 
courts had entertained such an action and we have devoted spe- 
cial attention for many years to judicial action in the United 
States involving Indian interests. AVe know that New York 
State courts have presumed to do that very thing (80 ]\Iisc. 418; 
155 A. D. 765) but it was when the Six Nations failed to apply 
for federal protection against it. When they did so apply (in 
the Boylan case) the application has proved thus far, very effec- 
tive. But in the Kagama case the Supreme Court upheld the 
power of Congress to extend criminal jurisdiction over Indian 
domain on the ground, as it conceived, that such extension was 
necessary for " the good of the Indians," as well as to make life 
safe for the white man ! Tribes with no professional hangman 
might, as has happened, consider it good for them if. in case of 
Indian crime, the Department of Justice mo\-ed on such rare occa- 
sions as those of obvious murder. Then, with no sympathy for 
the murderer, the tribes have refrained from questioning the 
right of prosecution. But such self-restraint has brought small 
return in kind from the Department of Justice. It is not the fault 
of the Senecas that the issue of sovereignty is now before them, 
forced by the nature of this test case at bar. Who will pretend 
that any interest of life, lim'b or property of neighboring white 
men is imperilled if a tri'bal Seneca falls victim to a miscarriage 
of justice in his own tribal courts? Spying on the frontier to pick 
a quarrel with neighbors has never been the province of judges 
here or elsewhere. Of course, no such miscarriage is conceded 
to have occurred in the tribal court. We must decline out of 
respect for Seneca sovereignty, to discuss here the quality of jus- 
tice administered by the tribal courts. Criticism of the equality 
of justice resulting in neighbor's courts in particular cases, is a 
pastime that the Senecas have equal right with white men to in- 
dulge in. but to do so is to forget the proprieties of neig-hborly 



behavior. Foreign Secretary Chamberiain recently stated in Par- 
liament on this point: "This j^overnment declines to enter into 
a controversy w^ith citizens of a foreign state as to conditions in 
any part of His Majesties' dominions.'" 

If no such suit as the present has ever been reported from 
the federal courts, want of territorial jurisdiction must be the 
sufficient reason and any quarrels between Indians over private 
property accounted for because, as in case of the white men, they 
are human. The present suit may well be accounted for as an at- 
tempt of individual Indians, either traitors to their tribe, or igno- 
rant and victims of bad advice, to use the machinery of justice 
^f the United States fcjr the humiliation of the tribe. 

If white men's courts have the right to partition among 
heirs, lands allotted by the Senecas themselves for their own 
homes and farms, a catastrophe has overtaken these people. Their 
small acreage of cleared plots. — of small value measured in terms 
of white man's money but Seneca homes ft^r all that — will event- 
ually and in no long time, be consumed in confiscatory costs of 
judicial partition by white men's courts. The Boylan case is an 
example par excellence of what may be expected. There a 32- 
acre parcel of Oneida land with commonplace buildings, was de- 
creed to be partitioned, and because of the several outstanding- 
shares the whole was ordered sold and the money proceeds to be 
divided (See Opinion, Ray, J.). The result was an award of 
money shares too small to meet the costs adjudged against the 
Indian shareholders, so that they not only lost their lands but, 
in addition, found themselves under money judgments to pay 
the deficiency of costs to the plaintiff.— a thrifty white woman 
and to her attorney. No wonder that Congress, if it had the 
right, has refrained as yet to extend to federal courts such juris- 
diction over Six Nation lands. The Senecas do not intend to 
appear and plead here but were they to do so they would char- 
acterize the prayer for judicial partition as an absurd proposal for 
the exercise of any duty of protection owed by the United States 
to tribal Indians. We know of no principle or precedent which 
would sustain it in any case where the Indians interested had 
not consented. 

The Court is invited to give still further consideration to the 
fundamental law of the white man's g-overnment here and to early 
interpretation of it by the white men's own courts, to discover 
the white man's own mind at work. — as legislator and jurist — 
on the subject of his relations with these tri])al peo])les. 



14 



in their old iiomes. The Act of 1830 (Chap. 148, approved .May 
28th, U. S. Stat. L. 84, p. 411) therefore provided (Sec. 3) : 

" The President shall assure the tribes or nations that 
the United States will forever secure and guarantee to 
them, their heirs or successors, the country so exchanged." 

It was there provided (Sec. 6) : 

" That the President shall cause such tribe or nation 
to be protected at their new residence against all interrup- 
tion or disturbance from any other tribe or nation, or from 
any other person or persons whatever." 

Is not the trespassing marshal of this court a person? 

In the unsuccessful effort to prevail on the Six Nations to 
move, the treaty of 1838 (Kappler's p. 504) ; the treaty that 
reeked with fraud (See Van Buren's message of Jan. 13, 1840). 
recited the following promise by the United States to these Six 
Nation tribes as to their rights in such new home. 

" To establish their own form of government, appoint 
their own officers and administer their own laws." 



Impelled by fear or lured by hope about 550 deluded Cayugas 
removed between 1831 and 1846 to Jackson's Indian graveyard 
in the treeless prairies of Kansas. In 1847 only 50 of these were 
f(umd alive. (N. Y. Senate Doc. No. 64, Vol. II, 1849.) 



The Senecas and other Six Nation tribes more wisely re- 
fused to move west and have held their ground and these home- 
lands to this day. The language last cited is a formula quite sat- 
isfactory to the Senecas to-day as descriptive of the domestic 
right of self-government to which they are entitled. 



As late as 1866, the Supreme Court, in a case involving the 
independence of the Senecas in their own domain, when the State 
of New York had attempted to tax it and referring to the pledges 
of the Pickering Treaty in respect to the Senecas, said (New 
York Indians, 5\Vall. 761. p. 768) : 

" These are guaranties given by the United States to 
which her faith is pledged to uphold." 



15 

At tlie same time, dealinq- with the attempt of Kansas to 
tax Indian domain, the same ecnrt said {\)^k p. ^57) : 

■' The rig-hts and privileges of these Indians can onl}- 
be changed by treaty stipulation or by voltintary abandcMi- 
ment of their tril^al organization." 

The Treaty of Canandaigua still stands. The Senecas have 
not yet voluntarily dissolved their tribal government and have 
never accjuiesced in the opinions of vvliite men's courts deroga- 
tory of their tribal sovereignty in home atl'airs. The obligation 
of these treaties with the Senecas to protect them, implied no 
consent of the Senecas to the exercise of a restraining power over 
them at home. The duty of the United States begins and ends 
with protection against aggression from the outside ; protection 
against third parties and, of course, protection against aggression 
by its subjects private or official hig-h or low as a self-denying 
implication of the covenant. But the duty of self-restraint by the 
United States, existed prior to and outside of any treaty and 
sprang from the natural right of every separate people to be left 
alone by all others, in respect to aggressive contact. 

I'rotection of tribal Indians by the United States in lultill- 
ment of treaty obligations exercised through judicial channels in 
courts of the United States and as complainant, is a quite recent 
activity of the federal government. It is probably the most laud- 
able form in which the United States has made good its promised 
protection. For decades the Indian Ofhce and the Department 
of Justice had left the Senecas to their own devices or to suiter 
aggressions. The United States during the same period seemed 
to think that its duty was discharged m seeing that the yearly 
dole of treaty calico reached these people in safety. For many 
years tribes with just grievances against the government itself 
or against its citizens, on complaining of wrongs suffered were 
offered by congress the cheap privilege (under enabling Acts) 
to sue the government itself when charging it with wrong, or 
to use federal courts to pursue trespassing United States citizens, 
— but at the expense of the tribe. That policy imitated an old 
one of New York State permitting Six Nation tribes to stie New 
Yorkers in New York courts for wronging Indians but the In- 
dians had to pay their own costs. The Six Nations were thus 
recognized by congress as quite competent to conduct their cases 
and to select their own counsel. But in 1871, Congress (R. S. 
Sec. 2i03) required the tribes, in proceeding, to arrange with law- 
yers (of the United States) on a speculative basis, for the statute 
forbade any other form of compensation. The proceedings under 
that statute have, with notable exceptions, proven a disgrace 
lo the government which enacted it, and little honor to the bar 



32 

over the people of the United States in the carrying on of that 
commerce. The reason for that measure was that it had been the 
early experience of the Crown as well as of the Colonies which 
revolted, that local (or State) control over that commerce had 
bred frauds on the Indians and led to wars for which the Crown 
and Congress had to pay. Hence, the creation of the Crown 
Office to which Sir William Johnson was appointed to administer 
over that commerce with the tribes, and hence the formulation by 
the framers of the federal constitution of the clause to vest a 
similar authority in the federal congress as a means of keeping" 
it from the separate States (See Elliott's De'bates in Constitu- 
tional Convention, Vol. 5, pp. 119 ; 308 ; 439 ; 463 ; 50? ; 560). That 
treaty-making was the decent way to exercise that power (where 
tribes were to be concerned) is shown by eighty years' practice 
ni the United States down to 18T1. 



The "Indian Intercourse Act" (R. S. Sec. 2116) enacted 
under that power had its origin in the first Congress, Second Ses- 
sion (Act of Jtily 33, 1790), to invalidate land purchases in the 
hands of white men grantees (subjects of the United States), il 
made without the authority of Congress. That legislation 
breathed of no authority in Congress to penalize the tribe for 
any part it might take in such transactions. 

The Constitution did not use the words " State " or " United 
States " in their territorial sense in 1789 of in amendments of 
1798 or 1803, so as to include unceded Indian domain. Use of 
those terms so as to imply exterior United States map lines 
encircling Indian domain did not occur until 1866 when, in phras- 
ing the Fourteenth Amendment defining citizenship (by ibirth) 
and to avoid the pretense of extra-territorial jurisdiction, the 
draughtsmen v\^ere obliged to resort to the saving clause " and 
subject to the jurisdiction thereof." The transfer by Congress 
of supervision over " aft'airs " with Indians from the War to the 
new Interior Department in 1849 had tended to spread the notion 
that Indian domain was within the United States. It was not 
until long after 1866 that, in the efi^ort to subjugate Indians by 
means of Acts of Congress and judicial decrees thereunder, an 
Indian born anywhere between the two oceans and between 
Canada and Mexico, was deemed born " in " the United States. 
Until map-makers were substituted as proper authority, instead 
of law. for defining jurisdictional limits as to territory,, no federal 
court had attempted under guise of construction to change 
the constitution so as to make it give authority over Indian tribes 
when its language carried authority only over its own people 
lin\'ino- commerce with them. 



•23 

The structure of the federal courts under the constitution in 
respect to territorial jurisdiction, does not support the extra-ter- 
ritorial jurisdiction on which the complainant here stands. While 
the bill alleges that this Cattaraugus domain is in the Western 
District of New York, that tenders no issue. Of the truth as to 
that, whether as to law or fact, the Court may and must take 
judicial notice, whether alleged in the bill or otherwise. The 
Cattaraugus -lands are not within the western district of New 
York within the meaning of the statute defining the civil jurisdic- 
tion of this Court. Congress, before defining that jurisdiction, 
had never by statute pretended to extend any civil jurisdiction 
of federal courts over tribal Indians or their domain. To attempt 
lo extend it in criminal cases, it was necessary that Congress 
should do it by express statute and it did so. For the immediate 
purposes of argument, we shall assume that that statute was ef- 
fective to that end. But by that statute (Penal Laws, Sec. 328) 
Congress recognized that such domain, commonly called " Reser- 
vations " had been theretofore outside of federal judicial districts, 
whatever the physical or geographical relations might be, and 
would so remain until in terms brought in by express legislation. 
But in bringing them in by the terms of the Major Crimes Act, 
they were brought in for the purpose of criminal jurisdiction only. 
In cases where these courts have civil jttrisdiction. it may only 
be exercised in the district or division of the district (counties, 
etc.) where the defendant resides. (Judicial Code, Sec. 51). Now 
these defendants all reside on this Seneca domain at Cattaraugus 
(admitted in the bill), and as that domain has never been declared 
by Congress to be part of this district, it cannot be deemed here 
to be so even if (which is not the case) it was wholly surrounded 
by territory which lawfully is part of this western district of New 
York. This district was created bv the fudiciarv Law which says 
(Sec. 97) : 

" The western district of New York shall inckide the 
territory embraced on the first day of July in the year 
1910, in the counties of * - * Cattaraugus, Chau- 
tauqua and Erie * * * with the waters thereof." (N. 
Y. R. S.. Sees. 541, 542. 572. 597. Act of April 9th. 1814L 

There is not and never has been a general act of Congress 
saying that any Indian Reservation shall be deemed part of any 
county of any "state. The Worcester case (6 Pet. 515) says that 
Indian territory is no part of any state. Such being the case no 
state could, by any act of its own. include such domain within 
any of its counties as an effective act of legislation, and if a state 
legislature, or if state map makers made maps on paper to so in- 



24 

elude Indian lands (and they did) their action was impotent. 
■When, therefore, the Judiciary Law speaks of the counties of 
Cattaraug-us or Erie as erected by the act of the State of New 
Vork, it means all of the territory of those counties which the 
state was competent to erect into a county of the state. If such 
counties as described by the legislature of New York extended, 
according to their map lines, into or around these Cattaraugus 
lands,— and they did— (for Erie County, see N. Y. R. S. Part I, 
Chap. 2, Title 1, Sec. 2, pp. 56. 58; for Cattaraugus County, see 
do. pp. 56, 82), the effort to include them was a nullity. A state 
cannot acquire jurisdiction over Indian land by projecting county 
lines around it (Ward vs. Racehorse, 163 U. S. 50-4). By U. S. 
R. S. Sec. 18.39, it was provided by Act of September 9, 1850, 
(Chap. 49, Sec. 21) that: 

"' Territory of Indians remaining unextinguished by 
treaty * * * shall be excepted out of the bounda- 
ries and constitute no part of any territory now or here- 
after organized until such tribe signifies its assent to the 
President to be embraced within a particular territory."' 

That provision, like the present New York Act " exempting " 
Indian domain from State taxation, while in form of legislation, 
was nothing more than solemn notice to all officials concerned to 
govern themselves accordingly where otherwise ignorant that 
Indian domain was outside federal and state sovereignty. 

This Court only has jurisdiction in a civil suit when the de- 
fendant is a resident of the district (Judicial Code, Sec. 51; 36 
Stat. L. 1101). The allegation that the parcel of land involved 
in this case lies within the western district of New York, or with- 
in Erie County, is without force to sustain jurisdiction. The 
Judiciary Act in bringing the territory of Erie County within this 
western district, does not operate to bring in any territory not de 
jure under the jurisdiction of the State of New York. These de- 
fendants and their lands are outside the jurisdiction of this Court 
tor all purposes of administration of civil law and civil remedies 
of the United States. 

The United States constitution itself sustains that result, so 
that the barrier may not be evaded by any attempt at curative 
action by congress. The lower federal courts, after being erected 
by congress, draw their judicial power directly from the consti- 
tution itself (Art. 3, Sec. 1). The constitution presumes no- 
where to confer power on its judiciary or indeed on any other 
hrancii of the government, to extend sovereignty in times of 



25 

peace over the domain of other peoples by aggressive operations. 
The inherent power of the United States, like that of any sepa- 
rate people, to engage in conquest by war. is a power derived 
from their might and presumes resistance of the people to be 
conquered. It does not arise from law and is exercised by wag- 
ing of war. It is not a power bestowed on any people by any con- 
stitution which they may devise for themselxe^ 

That the agency for the United States to declare war is 
vested by the constitution in a particular department only of its 
government, is quite another matter, but an important one here. 
The right to order the people of the United States into war is the 
prerogative of congress alone under the constitution. When it 
acts, its decree must be executed by the war agencies, — the army 
and the navy. Congress, if it wished to do so, would have no 
authority to substitute the courts, which are restricted by the 
constitution itself to the performance of judicial functions with 
their marshals and writs, for the army and navy in the enterprise 
of war. Would it be competent for congress to draft the judges 
of the Supreme Court to carry guns? Should any federal judge, 
when the case is made plain, lend his court to aid in breach of 
treaty obligation buttressed in the constitution of his countrv? 

The Fourteenth Amendment, Sec. 1, adopted in 18GG, con- 
lirms the view that the United States possesses no domestic juris- 
diction over tribal Indians. To reach the Negro who had no 
separate domain or other allegiance, citizenship was extended to 
persons born in the United States. The section was however 
carefully qualified by the words " subject to the jurisdiction 
thereof." That qualification was a very recent confession thai 
tribal Indians on tribal domain were not subjected to the sover- 
eignty of the United States (Elk vs. Wilkins, 112 U. S. 94-102). 
So too, that constitution in respect to the apportionment of rep- 
resentatives in the congress recognized (Art. 1, Sec. 2, Subd. 3) 
that tribal Indians in their domanis are outside the realm of state 
and federal (white man's) sovereignty, for it concedes that " In- 
dians not taxed " should and must be excluded from enumeration 
of population (Elk vs. Wilkins, supra). 

So congress, with or without a declaration of war, has no 
constitutional authority to require by its legislation, that the 
judiciary commit aggression (but another name for war) through 
its marshals and writs on a neighboring people. The judiciary 
may and should, had congress so ordered, decline to so act, espe- 
cially as to a people with whom the country is at profound peace. 
To obey such an act would be self-subordination by the courts 
to the legislative body, in the face of a constitution under which 



26 

the three departments are co-ordinate. To O'bey would convert 
the courts from instruments of justice into instruments of in- 
justice and for destruction of international law and order. W'hen 
foreign territory, not acquired by peaceful treaty, has been sub- 
jugated by the army and the flag thereafter raised over it in honor 
or dishonor, then and not till then, does the judicial anthorit\' of 
the United States courts attach therein. 



Again, that constitution reveals the deep distinction 'between 
judicial and political acts of government, for it was the work of 
clear-minded men. The relationships between the United States 
and other peoples being what we call political in their nature, they 
charge the conduct of them on its part not on the judiciary but on 
the executive and legislative departments. They expressly pro- 
vide that the relationships with, not control over, Indian tribes 
shoivld be under the charge of congress. The nature of the power 
to regulate that commerce is made no different from the power 
over commerce with Nations other than Indians for both spring 
from the same clause. The courts have held that treating with 
(he Indians did not fall for that reason to the President's author- 
ity under the constitution (subject to concurrence by the Senate) 
as in case of other foreign Nations (Cherokee Nation vs. State 
of Georgia, 5 Peters 1-1831). Since that decision was made it 
has been supposed that the Indians could not be aliens as to the 
United States. But the location in one place rather than another 
of the power to treat with Indian tribes could not affect the rela- 
tion of the tribes to the United States. The common saying since 
I8;>1 that an Indian is neither a citizen nor an alien (as to the 
United States) is self-contradictory and absurd. The relation- 
ship with these tribes is none the less political in its nature than 
if Indians were white, lived far away and all of them Gladstones 
in culture. To enjoin by writ the functioning of the Seneca 
Surrogate at Cattaraugus, — despite its judicial form and cloak — 
would be as palpably political in its nature as thougdi the identical 
command were borne to the Senecas by a Sergeant at Arms of 
Congress. The act. if effective, would destroy the tribal govern- 
ment pro tanto. If yielded to, it would mean ultimate destruction 
in toto of the tribal g-overnment. What rebellious-minded Seneca 
thereafter would respect any act of his tribal government which 
did not suit him? When in 1850 the attempt was made to dis- 
turb the Tonawanda Senecas in the tenure of their domain 
throup-h judicial action the Supreme Court (Fellows vs. Black- 
smith. IS Howard 366) refused to permit it l)ecause it was not, 
as it said, a judicial function. If the sheriff' mav not be used, onlv 
the soldier is left to act. 



37 

The judiciary is not the political instrument of this or any 
other modern government of civilized men. (Lone Wolf v. Hitch- 
cock, 187 U. S. 553-5G5). In the case cited the Supreme Court 
refused, on the application of the Cherokee Nation, to interfere 
with the operation of an act of congress for allotting lands con- 
trary to treaty and however tinjust, 'because, the court said, it 
was a political matter. It plainly wished to wash its own 
hands of it. Had that truth been in the mind of that court when, 
16 years before, it upheld the indictment of Kagama it is un'be- 
lievable that the cotirt would have lent the services of its marshal 
as a hangman to assist congress in its desire to function in foreign 
relations by hanging of alien Indians for acts done outside of 
United States jurisdictional boundaries. Yet here, the United 
States, through the Department of Justice, demands that this 
court by its injunction shall strike down the tribal government of 
the Senecas where the act would be no less political and when 
even congress has no where assumed the odium of decreeing such 
destruction. Surely, if the Seneca Nation is to be degraded by 
the act of the white man under the flag of the United States, by 
domestic subjugation to it, the deed should await the frank and 
positive command of congress, if t'he organization of government 
under the constitution of the country is to be respected by its own 
courts. Let congress take that responsibility if it will, and, if not 
by open declaration of war against an unoffending people, at least 
by affirmative act where'by the responsibility for the warlike deed 
may be fixed and rest where it would justh^ belong. Let it be ac- 
com]:)lished without dragging the judiciary into the base work. 
Blackstone, Kent or Marshall devised no judicial institutions 
or writs appropriate for the subjugation of aliens domiciled extra- 
lerritorially. 

The degeneration of the descendants of Cornplanter, Red 
Jacket and Big- Kettle may be assumed by certain of their office- 
holding neighbors. But they have not degenerated unless the 
adoption of the principle of nonresistence practiced by their 
Quaker friends is degeneration. If it be so, they have learned it 
at the feet of the white man. In 18-iO, at a tragic moment at 
Buffalo Creek in the history of these people, they stood ready to 
go down before the military of the United States if set upon 
them, in defending themselves against the unspeakable fraud 
perpetrated on them there, had that been their only recourse. 
Through the intervention of Quaker friends another way was 
opened and accepted and their i)resent little domain saved. From 
that day to this the Senecas have honored their saviours with the 
flattery of imitation of the Quaker policy of nonresistance. And 
what reward has that earned them from the government of the 
United States? Anv assistance^ bv the Uniterl States "-overn- 



28 

ment in perfecting their tribal government? No. It was their 
Quaker friends who inspired the abolition of chiefs and the ado[)- 
tion of their written constitution and elective system of govern- 
ment in 1849. In the year 1871, their nonresistant character had 
become pronounced enough to lead congress to class the Senecas 
along with all other aboriginees as tribes whom it would in future 
refuse to recognize as independent for the purpose of any new 
treaty-making. But congress avowed its respect for obligations 
under existing treaties (R. S. Sec. 2079). Fourteen years later 
without consultation with the Senecas, t'hey were swept into the 
-statute (Penal Laws, Sec. 328, Act of March 3, 1885, Chap. 341, 
Sec. 9), extending the judicial power of the United States over 
Indian lands for the prosecution of major crimes, in disrespect of 
Seneca domestic independence and a proposal to " disturb " the 
Senecas within the meaning of the Canandaigua treaty. 

The original Indian Crimes Act (March 27, 1854; 10 Stat. 
L. 270) excepted (R. S., Sec. 2146) the case of Indians punish- 
able by laws of the tribe or members of tribes which by treaty 
had (the language of congress) "retained jurisdiction over such 
acts committed by its members." The federal courts have been 
very ready to overrule the pretenses of state legislatures to rule 
over Indians but it 'has been the recent attitude of those courts 
to lend themselves, on the demand of congress, to disrespect 
tribal rights. And congress is today growing on its own part 
boldly aggressive in these respects. In January, 1920, the House 
of Representatives passed a 'bill, which later died in the Senate, 
enforcing citizenship on these people. The bill was recommended 
by the Department of the Interior, which considers itself " in 
charge " of these Indians and not merely to make good the pro- 
tection provided by treaty and to supervise the people of the 
United States in "traffic with Indians" as limited by the consti- 
tution. The opportunity is offered here for this court to point out 
the error of that position. 

All exercise of judicial power by the federal government, 
both in civil and criminal administration, must accord with the 
guaranties of certain fundamehtal rights of a " person " devel- 
oped in English law and incorporated into the constitution. Any 
alien has those rights when he is here for, in the toils of these 
courts, he is a " person " equally with a citizen. (Wing (Wong v. 
United States, 1G3 U. S. 228.) In civil as well as in criminal cases, 
issues of fact must be tried by jury (Amendments 6 and 7). The 
jury must be impartial in either case. From abundance of cau- 
tion, Amendment (i, so says in terms as respects criminal cases 
but the jury " preserved " in civil cases (Amendment 7) must l)e 
equally so for such was the common law jurv of England whence 
it was derived. 



29 

in Eng-iand impartiality required the political brotherhood 
of co-citizenship to exist between the accused and his juror- 
judges. The jurors had to be peers of the accused. Jurors alien 
to the accused citizen were thus an impossibility. Possibility of 
bias springing from national antipathies was eliminated. A 
Seneca and a New Yorker are alien to each other. Worse than 
that, with the Seneca he cannot become a citizen of the United 
States if he would. — though any European may. for the door is 
now and always has been closed against the Seneca. Xo tribal 
brother of his could be lawfully summoned to sit on his jury in 
this court, in a case civil or criminal. The law would not forbid 
twelve men of African descent to try another in this court and a 
black man may be tried by twelve white men for they may be 
co-citizens oi the United States. If a Seneca is triable here his 
act, if committed at his home, may have injured a New Yorker 
who was abroad on Seneca domain and who may become the 
accuser of the Seneca in this court. Prejudice on the part of a 
juf}- of Xew Yorkers in such a case would be presumed between 
fair minded men everywhere else, and ought to be presumed bv a 
judge of this court. The guarant)- of Magna Charta of an im- 
partial jury cannot be afforded to a Seneca in that situation under 
the structure of this court and. that being so. the court cannot 
hold him under its jurisdiction. That guaranty is one that could 
not have been developed where the practice existed of extending- 
so\ ereignty over foreign soil by parliamentary fiat, or by bring- 
ing persons within the court's territorial limits by otiicial kid- 
napping for criminal prosecution. If this matter of the jury has 
l)een considered heretofore by the courts in coimection with this 
question of jurisdiction in Indian cases, we have never seen the 
reported case. By parity of reason a judge of a United States 
court would be disqualified by bias to preside on trial of a tribal 
Seneca for an act done on Seneca domain. Respect for structure 
of courts prevents such situation from arising as in case of the 
jury. 

In the aticmpt to answer this objection to jurisdiction here, 
it was contended on the argument that an alien from a European 
state may be triable here for his acts, notwithstanding his brother 
aliens were not permitted to sit on his jury. True : with the quali- 
fication that the act of which he is accused was committed within 
tlic United States. In such a case one who had come here of his 
cJKnce has. of course, submitted himself to the law and courts of 
this land as constituted. He is free to stay away. These Senecas 
have not so submitted themselves They have not come here at 
all : or if they have been here, they have offended against no 
United States law. Thev are not charjrcil with anv such violati.Mi. 



e 



30 

Where is the United States law which says how land held 
in severalty by a deceased Seneca shall descend or how his will 
shall be made or probated and, if there is one, 'how and when was 
knowledge of it communicated to the Senecas? Certain states 
have ;-o enacted but how do federal courts get power to enforce 
state laws? The acts of the defendants, offensive to these com- 
plainants who have moved the United States to this suit, be what 
they may, were done on foreign soil and at their own homes. If 
they thus violated any law, it was their own domestic law of 
the Seneca Nation which only their own tri])al courts exist to 
vindicate. 

To enforce any decree of this court in this suit against these 
defendants personally, they would have to be kidnapped by a 
marshal in order that they might be cast, if necessary to their 
subjugation, into jails of the United States in the name of the 
[)eople thereof of whom the Senecas are no part. 

Since aliens are discjualified to sit on juries here, under a pol- 
icy common, of course, to all peoples the exercise of jurisdiction 
in such cases everywhere and over these Senecas here for acts 
done in their home domain, would not rest on any basis of law. 
When courts cease to act on the basis of law theNincumbents .jf 
their benches are mere men devoid of authority. The jurisdiction 
claimed here would not be taken by an international court, if 
such existed for, on the facts, the real quarrel over private prop- 
erty existing between the real parties in interest who are private 
[)arties, is of domestic cognizance and not of international con- 
cern. 

But such situation would not mean that a miscreant red 
or white, was outside the reach of his domestic law. The Canan- 
daigua Treaty expressly covered and adequately for the time, in 
the opinion of all parties to it. cases of misconduct under domes- 
tic law likely to disturb good relations between the United States 
and the Six Nations. It provided (Art. T) : 

" Lest the firm peace and friendship now established 
should be interrupted by the misconduct of individuals, 
the United States and the Six Nations agree that for 
injuries done by individuals on either side no private 
revenge or retaliation shall take place, ])ut instead there- 
of complaint shall be made by the party injured to the 
other; by the Six Nations or any of them to the Presi- 
dent of the United States or the superintendent by him 
appointed, and by the superintendent or other person 
appointed by the President to the principal chiefs of 
the Six Nations or of the Nation to which the offender 



31 

l)elongs, and such [)ru(lent measures shall then be pur- 
sued as shall be necessary to preserve our peace and 
friendship unbroken until the legislature (or Great Coun- 
cil) of the United States shall make other equitable pro- 
vision for the purpose." 

Here is the plainest evidence that neither party considered 
that misconduct to occur within the domestic domains of one, 
unrelated to international peace between them, would be any af- 
fair of the other. Congress has never made " provision " on its 
part different from that specified in the treaty, unless the creation 
of local Indian Agents as mediums of complaints between the 
parties be such and any provision by congress thereunder, if 
made, may be only for the purpose stated, i. e., "to preserve peace 
and friendship unbroken " between the pafties. That clause of 
the treaty is in full force to-day. Either party may punish its 
own people for any act done at home or elsewhere calculated to 
endanger that peace. That congress has since considered that 
misconduct of persons, not calculated to disturb that peace, and 
however deplorable in its nature, to be no affair of the alien nation 
is made plain for it acted accordingly for exactly one hundred 
years (until 1885), when it faced about and enacted the Indian 
Crimes Act to punish any tribal Indians in case of the major 
crimes. If Article 7, of the Canandaigua arrangement is inade- 
quate as between the Senecas and the United States to-day to 
preserve proper relations, the whole fault for that cannot lie with 
the Senecas. Have they refused overtures to amend it or refused 
to treat with the other party ever again, as the proud congress 
of the United States in 1871, declared it would do? 

The white man has been given to complaining that the Sen- 
ecas do not punis'h their own people for wrong-doing at home. 
True, to the extent that the Senecas have no elaborate written 
code of criminal laws although, in common with their ancestors, 
they have a very severe and eft'ective unwritten code of social os- 
tracism for wrong-doing. But when did the Senecas ever promise 
the United States that they, would enact a criminal code or when 
did the United States ever ask them to do so? The United States 
government, generous in imparting to the Senecas the secrets of 
other attainments of the white man, has refrained with apparent 
design from revealing to them or to other Indians any knowledge 
of better self-government possessed 'by the white man and while 
the Indian's need thereof has grown apace. The Senecas could 
turn the tables on the United States in respect to poor records in 
enforcement of penal law. The United States has had a penal 
law since 1790, called the Indian Intercourse Act. That Act pro- 
vided a punishment by way of fine of one thousand dollars for 
anv person rsubiect of the United States') who should traffic for 



32 

Indian land without consent of the United States government for, 
presumably, the Indians would be cheated in such case. That 
penal law has been violated from 1790 down to this day by thou- 
sands of citizens of the United States, usually in the open, and 
violated by governors of states, especiaHy by early governors of 
New York, as well as by private citizens. It has remained a dead 
letter since its enactment, over one hundred and thirty years, for 
that penalty, so far as we can learn, from diligent search of the 
books, has never been enforced by the United States against a 
single violator in all that time. And those violators have been a 
fruitful and notorious cause of widespread disturbance of peace 
and friendship between the United States and its tribal neighbors. 

Invasion of the Cattaraugus lands by the marshal who served 
the writ here was " misconduct " of an individual within the terras 
of the Canandaigua Treaty. The Senecas, respectful of that 
Treaty, let him go in peace. They have never attempted revenge 
on the United States for the insult but they complain of it here 
and now. That treaty provides that in such a case they shall 
make complaint to the superintendent appointed by the Presi- 
dent, now the Secretary of the Interior or the Indian Office. But 
it was those very functionaries who caused the marshal to in- 
trude upon the Senecas and they did it in wilful violation of the 
protective duty owed to the Senecas by the United States. It 
is that official dereliction and misconduct which compels the 
Senecas now to address their plea for political justice and treaty 
rights elsewhere and by a special appearance here to lay it before 
this judicial department of government, one of co-ordinate status 
and one which those same officials seek nevertheless to use in pur- 
suance of their aggressive purpose against the treaty-abiding 
Senecas. The Senecas are too wise to waste their time complain- 
ing to the local agent, paid by the white man "to take charge of 
them," that such an aggression as this against tribal sovereignty 
has been committed. Such aggressions are often inspired by 
these local agents who always deprecate resistance. 

We had hoped that it would appear that the bringing of this 
suit was an unauthorized act of subordinate officials without 
delegated power. We learned, therefore, with surprise on the 
argument that it was but an instance of a new policy of the De- 
partment of Justice deliberately declared by opinion of an Assist- 
ant Attorney-General, rendered to the Department of the Interior 
on June 21, 1919, in consequence of which but under a discretion 
left to subordinate and local officials of the Department of Jus- 
tice a similar suit (Bishop vs. Seneca Nation. No. 57-b in Equity, 
an earlier issue than this) is now pending in this district unde- 
termined. We have since learned that when that suit was 
l)ri)ught the Seneca Nation appealed to the Dejmrtment of Justice 



33 

for protection against it, with the above opminn as the outcome. 
Such high source of authority for assault on the domestic inde- 
pendence of the Senecas aggravates the oitense but the seat of 
It is not above the reach of the judicial branch of the government 
in respect to how the judiciary may be employed outside the 
range of constitutional warrant. Ii must be plain that when the 
Department of Justice with acquiescence of the Interior De- 
partment make such a vital attack as this on the integrity of 
the Seneca Nation in the domaui of the home rule of the latter, 
the Senecas must boldly assert their rights or lose all right Lo 
respect as men and women. 

The effort made on the argument by the learned Assistant 
District Attorney to sustain jurisdiction on the theor}' that the 
" land " referred to in the bill consists of an " al'lotment " within 
the meaning of Section 34, Subd. 24, of the Judicial Code, should 
not succeed fcr it rests on error. The bill avers in effect and truth- 
full}^ that that parcel of land fell under private tenure (in sever- 
alty) by force of the tribal laws and acts of the Seneca Nation 
itself done in connection with distribution years ago among indi- 
vidual Senecas of their tribal territory previously held under 
communal title in the whole tribe. Senecas never bestowed the 
name " allotment " on that process nor did the white man in early 
days. That term came into use when many western tribes were 
read}^ for disintegration and took advantage of or submitted to 
acts of congress expressly intended to facilitate that process. 
The earliest use of the term " allotment " by congress which we 
have thus far been able to discover, is the Act of June 14, 1862 
(12 Stat. L. 42; R. S. Sec. 2119) which refers to partitions "in 
pursuance of a treaty " authorizing them. No federal treaty with 
the Six Nations authorizes or provides for any such division in 
severalty. The " law " referred to in Section 24, refers, of course, 
to a law of congress, if any, not to tribal laws common or written 
and to federal laws of the white man as distinguished from his 
state laws. The first important step of wide application taken 
by congress to assist in tribal dissolution, was the Act of Febru- 
ary 8, 1887 (24 Stat. L. 388), wherein the land plotting was to be 
done by United States surveyors and wherein the Secretary of 
the Interior was to issue patents thereunder to the " allottees " 
and (by Sec. 6), the allottee 'who accepted such patent was to 
become a citizen of the United States. Acceptance of the patent 
im])lied perhaps, by a pleasant fiction, the free consent of the indi- 
vidual to change his allegiance. When the last member changed 
his allegiance the old tribe was ipso facto dissolved. Under that 
act the grantee's power of alienation of his parcel was, by Sec- 
tion ."), restricted for a term of years, and the United States be- 
came trustee of the property of its new citizen for that period. 
r>y Section 8. the act expressly excepted the " Reservations " of 
tlic .Seneca Nation from its operation. 



Svxniou X' I - ,:.lio\;v\ U\\. .<o tar vX:< it wouUI o\^er;ae 

w j^ oa.<c ari^^ino , ar act, \va$ not ;tii> exieusion v>t the juvU- 
cktl junj^dictkni ot th«^ Unitied States oyxt forev^i> ternt^^ry or 
over aliens outs^kle its^ Kwnduries bvtt it operate<^l to vest in fed- 
erjtl cx-'urts a niri^dictk^n tor tewix^rarv prottvtion o( t\e\v citi- 
.•ens of ~ V - ' St^'ites whvh bwt for that pr>,>visiou \vvn\Kl 
h.nt" ves - - - n state coxtrts, for thk\<e ovnirts vvouUl have 
"n.:i junsdKnK>u automaticallv over such lauds and over such 
. -,;. ens in res^>ect to rijihts in their aHotmeurs. rhe justincation 
for so vestitt^^ that jurisdictioTt it\ the federal iudiciary, as ag^ainst 
:' . states, was the tetn^x>rary trusteeship over that land thus re- 
ed by the Uttited Statx>s v McKay \-s. Kallyton, ^^W U. S, 
<->>V The rtcason certain tribes namevl in that act (not inchidint>^ 
rhe Scnecas^ were excepted by subd, ^t of sec. <4. Judicial Code, 
was that a similar iun*dictiv''n of federal courts as to " allot- 
ments " in the case of th<>se excepted tribes had been specially 
provided ior elsewhere and by specific treaty agTeement between 
fv :t and the United States tbrx-^ugh the Dawes Comn>ission, 
\ < ccimen forrn of such treaties appears in Section ^i^, of the Act 
\.ne ^^, 1J>^^J^ (Chap, ^>n, Jh"* Stat, I., 4i^5>, Those treaties art- 
, once that the metnbers of the Congress of 1Si>S were not so 
hanghtv as the members of the coti^Tess of ISTl. in respect to 
reco^niiritiir Itidian Tribes as competent to have new treaty rela- 
tions with the United States of America, The Senecas were ex- 
cepted from the Act of lSi>S prestxmablv because congress well 
ktiew that the Senecas had lotig before divided their own domain 
in severalty among^ themselves so far as they wished, and did 
not wish to dissolve t'lc-V f-iT^T ^tr-.u^rnro or vield the right '^f 
home rule. 

The meaning^ of a word used in legislation, whether by con- 
stitution or leg-islative enactment, is to be restricted to the mean- 
itig- current ,i: the time of its use. (Pr^'^'^^'^^'^^r '^'^- Kdwards, Col- 
lector ^t^S V\ 

The term "allotment" then in Section :?4 of the Judicial 
Ceo was not intended by congress itself to apply to the case of 
,i:.ls held in severalty at Catiar,^ug~us and with wiiich the bill 
here is concerned. This view may not accord with the opinion 
of the Indge presiding^ here and which he rendered in Lay vs. 
Porter, on April ^3, 1^19, but an opinion never report eil. We 
have consulted that opinion since the arg~ument. In that case it 
was alleged, according^ to the opinion, that the tribal partition 
ni severalty made of Seneca domain had been " approved by con- 
gress." The bill here contains no such allegation and we know 
of no such acts of congress to support the tnith of any such alle- 
gation if made. That case, therefore, is not controlling under 
the allegations of the bill here. Congress has never yet pre.^nmed 



•«-' 



36 

tilting aggTession by one tribe against another so as to call for 
the protection of one tribe (to be selected at the will or humor 
of an administration at Washing-tonj as against the other. 

Under the Treaty of Canandaigua it was the undertaking of 
the United States in respect to Seneca territory (there acknowl- 
edged and described), to protect the Senecas in the free use and 
enoyment of it ; not to aid and encourage Cayugas, domiciled 
with the Senecas on Seneca domain, in treason or rebellion 
against the constituted authority exercised by the Seneca Nation 
therein. By the same treaty any obligation to protect the Cayuga 
Nation was to give them protection in the Cayuga Reservation 
referred to therein and then still held by them, embracing 64,000 
acres adjoining Cayuga Lake, and which was parted with by the 
Cayugas after the date of the Canandaigua treaty. As already 
stated, Lorinda John, intended by the United States as a bene- 
ficiary of this suit is, according to the bill, a Seneca. It can only 
be her husband, Alexander who (by birth) is a Cayuga. 

In treating with France in 1803 for Louisiana the United 
States recognized (Mallo}-, p. 508) the local sovereignty of the 
occupant Indian tribes for it bound itself to respect their out- 
standing treaties which had been concluded with Spain. The 
Supreme Court said that those treaties were inviolable bv Con- 
gress (Mitchell V. U. S. 9 Peters T54). 

In treating with Great Britain the United States has con- 
fessed that the Six Nations were independent. The Treaty of 
Paris (Alalloy's Treaties, \\ 1, p. 580) by its silence ignored the 
existence here of red men. The British Crown and the United 
States had ostensibly divided the earth here between them by a 
line following westward the 45th parallel to the St. Lawrence 
River which it strikes at the point of Cornwall Island, running 
thence up the waters of the Great Lakes. W'hen the Six Nations 
then (j783) under cover of a British fort at Niagara, and allies 
of the British, wanted to know by what right Great Britain had 
assumed to consent to such a division as against them, they asked 
for the reasons. At the same time they expressed their astonish- 
ment that the Crown had presumed to cede their old homelands 
lying .-.outh of that boundary to the United States (Life Sir Fred- 
erick lialdimand in "Makers of Canada," V. 3, p. 256). The ques- 
tion was, of course, embarrassing to the British for it would have 
been impossible on any theory of the law of Nations for Great 
Britain or the United States, or both, to establish a prerogative 
in themselves for drawing a line through the domain of the 
Caughnawaga — St. Regis tribe (Mohawks) through which tlie 
St. Lawrence 3S||kI this line passed, and across which line the 
members of that tribe would not be entitled to pass with the same 



3: 

freedom as before a white man had set foot on the land we call 
■"America." That truth was confessed, painfully perhaps to the 
white man, by both parties vVhen in 1794, the Jay Treaty of Amity u 
(Malloy, p. 590) was negotiated, wherein by Article III, the rights 
of native Americans was recognized. Moreover the language 
used there treated these tribes as being outside the circle of Brit- 
ish subjects, as well as outside United States citizenship and sov- 
ereignty. That article recognized that these peoples were enti- 
tled to pass and re-pass over the line by land or by water and 
for commerce and intercourse between themselves. To make the 
admission still stronger that article was amplified by amendment 
of 1T96 (Malloy, p. GOT) to provide that no treaty made or to be 
made by either party with any other Nation or with any Indian 
iribe. should be construed to deny the tribal rights thus recog- 
nized. No act of Great Britain or of the United States could bave 
more solemnly recognized the outstanding right of native Amer- 
ican tribes to political independence. And. while not mentioned 
bv name therein, it was the situation of the Six Nations which 
provoked that confession. J^ecause their domains bordered the 
Great Lakes, and becatise no white man had up to that time ever 
prevented them from crossing those w'aters at will, and tip to that 
time no white man ihad dared to try. The Jay Treaty stands to- 
day with all the force it had when ratified, as the most solemn 
confession by the United States of the right of the Six Nations to 
exist independently of the will of the congress of the United States 
and of the Imperial Parliament of Great Britain. 

In 1814 at the Peace of Ghent, the same two powers by Art. 
IX of the treaty (Malloy, p. 618) recognized the Indians as being 
neither citizens of or (apart from some treaty provision for 
it) in subjection to either. Great Britain forced that article -.y 
upon the United States and she is to-day pressing claim against 
the United States under its covenants in favor of certain Six Na- 
tion Indians now living under British protection on the Grand 
River. In the famous discussions between the diplomats at Ghent 
each power told much unpleasant truth a'bout the other in respect 
to aggressions on Indians. John Ouincy Adams, one of the 
American commissioners (elected President ten years later), said 
(Am. State Paps., Foreign Aflfairs, V. 3, p. Tlo) in reply to the 
charge that the United States soug-ht to treat the Indians as 
subjects : 

"They are so far independent that they li\e under their 
own ctistoms and not under the laws of the United 
States." 



38 

Adams had long- pondered that subject and in 1802 in a Pil- 
grim's Day address at Plymouth had said that the title of Indians 
to their homes, by the law of nature, was good even though they 
might not justly hold, as against the needs of spreading civiliza- 
tion, all the boundless forests over Which they roamed as hunters. 

According to that doctrine the taking from unwilling tribes 
of their outlying grounds was founded on no acknowledged law 
but on the strength of a stronger people in need of more domain. 
As a matter of policy, the aggression was to be practiced by civil- 
ized Europeans where possi'ble under cover of treaties with chiefs 
whose marks were to be secured on cession parchments and if 
necessary, with the aid of gin. The small domains to be left for 
homelands might become inviolable however under the same doc- 
trine if the tri'bes converted them by allotments to agricultural 
uses. All the small remaining Indian domains between the 
oceans have since that day been so converted. The remnants of 
the old Six Nation country were the earliest to be so converted. 
Cornplanter 130 years ago now led his warriors to join with their 
women in the tilling of the soil. They have paid the price that 
the white man, with no right to set it, did set for their right to 
domestic sovereignty therein. Under the Adams doctrine these 
small domains scarce discernable on the map, are sanctuaries 
to-day which the great United States may neither invade 
through the marshal of its judiciary or with its soldiery. That 
the United States in truth covets these plots to o'bliterate them 
along with any memory of the native Americans whose arms in 
alliance helped to turn the scales in the strife between France 
and Great Britain and saved these lands to English-speaking set- 
tlements we decline as yet to believe. That right of sanctuary 
is no less perfect than the Ghent commissioners, in effect pro- 
claimed to the world when they avowed (Am. State Paps. For 
Rel., V. 3, p. 719) : 

" The United States intends never to acquire lands 
from the Indians otherwise than peacealily and with 
their free consent * * * and intends to leave them in 
possession of lands adequate to their situation, comfort 
and enjoyment by cultivation." 

To say that no Indian domain between the oceans was ever 
ceded willingly or ceded in no case on fair terms would not be 
warranted. But when on countless occasions it has served the 
selfish ambitions of the United States it has not hesitated to 
ignore the rig-'ht of Indian tri'bes to domestic independence 
whether in case of roaming hunters or of communities fixed in 
agricultural settlements, but never until late years in case of the 
Six Nations. 



PD 14 



'JP 



39 

Shall the United States judiciary, now that it is asked to do 
so, trample upon public justice when the Seneca Nation, extend- 
ing all due respect to this tribunal, demands recognition of its 
domestic sovereignty? 

As Cornplanter waited in HOI so now his decendants await 
answer to their question. 

In conclusion we submit that the Six Nation treaties of 118-1, 
1789 and Vid-i constituted not a commercial but a social compact 
between neigli'boring peoples no less than did the Treaty of Phila- 
delphia between the thirteen states known to history under an- 
other name. In consequence of the Six Nation compact with the 
United States the tribal arms as against their neighbors were 
buried at Fort Stanwix as the arms of the separate states as be- 
tween themselves were buried at Philadelphia. The Six Nation 
people have adjusted themselves to a life of peace and to develop- 
ment of agriculture under the Fort Stanwix compact. The courts 
of one of the parties have no power in law and no right to sanc- 
tif}^ disrespect for it. So sacred did the United States hold such 
social compacts to be, with its interests at stake, that when the 
Southern States tired of the Philadelphia compact and frankly 
said so. it went to war with them. If that war for preservation, 
against the will of the Southern States, of the Philadelphia com- 
pact was just, then the Seneca Nation ma}' justly hold the 
United States, even against its majestic will, to the bond of its 
social compact with the Senecas. But as yet the United States 
has served no notice and through no voice, authorized b}^ its con- 
stitution to speak in that behalf, has it declared its withdrawal 
from that compact. The compact still stands. Nothing but con- 
sent can dissolve it, nothing but force override it. 

If this Court finds itself obliged to function here in behalf of 
the United States in dealing with a matter of foreign relations, 
it is because other departments charged with such responsibility 
have evaded their duty. It is no fault of the Seneca if the only 
ear of the United States open to their protest against this suit is 
that of this Court. The Senecas appeal to this Court to vindicate 
the rules of justice as between separate peoples, to vindicate the 
Constitution of the United Stales: respect its treaties and save 
the Senecas at the same time from the alternative of submission 
to the destruction of their political institutions within their own 
domain on the one hand or of resistance to civil mandates issued 
from this tribunal, alien to them, on the other. 

The approved form of procedure would be a direction to the 
Clerk to enter an order, on the Court's own motion, dismissing 
the writ for want of jurisdiction and ordering that the bill filed 
be removed from the records of the court. 



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